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Petitioner: KHALID and otherss VS Respondent: The STATE-
Court Name: Lahore High Court Judge(s): Aalia Neelum, Sardar Muhammad Sarfraz Dogar Title: KHALID and otherss vs The STATE- Case No.: Criminal Appeals Nos.312-J and 1520 of 2002 Date of Judgment:2015-09-30 Reported As: 2016 YLR 2589 Result: Order accordingly
JUDGMENT
JUDGMENT ' AALIA NEELUM, J.---The appellants Khalid alias Nadeem son of Ghulam Hussain, caste Bhatti Rajput, resident of Jandiala, Police Station Zafarwal, District Narowal and Asghar alias Koudu son of Muhammad Shafi, caste Malik Awan, resident of Hassan Lal, Police Station Muradpur, District Sialkot along with co-appellants, namely, Muhammad Rafique alias Kona son of Zahoor Hussain (since died), Ejaz Butt son of Sarfraz Butt (since died), Ashfaque alias Ishaq son of Muhammad Sarwar (since died), Shahbaz Butt son of Sarfraz Butt (since died) and Munir alias Muniri son of Nazeer Ahmad (since died) were involved in case FIR No,43, dated 02.02.2001, offence under Sections 365- A, 386, 148, 149 P.P.C. Registered at Police Station Rangpura, District Sialkot and were tried by Ch. Muhammad Hussain Maiken, Judge, Anti-Terrorism Court No, II, Gujranwala. The learned trial court seized with the matter in terms of judgment dated 30.7.2002 convicted Khalid alias Nadeem alias Tenna, Asghar alias Koudu, Muhammad Rafique alias Kona (since died), Ejaz Butt (since died) Ashfaque alias Ishaq (since died), Shahbaz Butt (since died) and Munir alias Muniri (since died) under Section 7(e) of the Anti-Terrorism Act, 1997 and sentenced them to imprisonment for life with the direction to forfeit their whole property in favour of the State whereas acquitted the other accused persons, namely, Imdad alias Dadu, Muhammad Akram, Muhammad Asif, Saleem alias Chhmma and Shahid alias Deka (respondents Nos.8 to 12 in Criminal Appeal No,1520 of 2002). 2. Feeling aggrieved by the judgment of the learned trial court, appellants-Khalid alias Nadeem and Asghar alias Koudu along with co-convict appellants cited above (since died) had assailed their conviction and sentence through Criminal Appeal No,312-J/2002 whereas the State has preferred Criminal Appeal No,1520/2002 for awarding capital punishment to respondents Nos.1 to 12. As both the matters were arising out of one and the same judgment of the learned trial court
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these have been disposed of through a consolidated judgment. Due to the death of appellants Nos.2, 3, 5 to 7, namely, Muhammad Rafique alias Kona, Ejaz Butt, Ashfaque alias Ishaq, Shahbaz Butt and Munir alias Muniri in Criminal Appeal No,3124/2002 and respondents Nos.2 to 4, 6 and 7 in Crl. Appeal No,1520 of 2002, the appeals in hand had been abated. 3. From the perusal of order dated 27.3.2014 passed by a learned Division Bench of this Court, reflects that appeal in hand is alive only to the extent of appellants, namely, Khalid alias Nadeem and Asghar alias Koudu, as five of the co-appellants, namely, Muhammad Rafique alias Kona, Ijaz Butt, Ishfaq alias Koudu,Shahbaz and Munir alias Muniri had lost their lives in an untoward incident taken place within the premises of District Jail, Sialkot in the year 2003. 4. Keeping in view the above stated facts, the instant Criminal Appeal No,3124/ 2002 filed by Khalid alias Nadeem and Asghar alias Koudu, appellants as well as Criminal Appeal No,1520 of 2002 filed by the State for awarding capital punishment to respondents Nos.1 and 5, namely, Khalid alias Nadeem and Asghar alias Koudu along with other respondents Nos. 2, 3, 4,. 6 and 7, namely; Muhammad Rafique alias Kona (since died), Ejaz Butt (since died), Ashfaque alias Ishaq (since died), Shahbaz Butt (since died) and Munir alias Muniri (since died) and respondents Nos.8 to 12, namely, Imdad alias Dadu, Muhammad Akram, Muhammad Asif, ' Saleem alias Chhmma and Shahid alias Deka are being decided afresh in view of the judgment passed by the Hon'ble Supreme Court of Pakistan in Criminal Appeal No,453 of 2012 dated 23.10.2013 directing this Court to decide the. Criminal Appeal No,3124/ 2002 Afresh. It was also observed by the Hon'ble Supreme Court of Pakistan in the said judgment dated 23.10.2013 that Co convict in the instant case, namely, Khalid alias Nadeem had also challenged his conviction in Criminal Petition No,3504.1 2003 which was dismissed by the Apex Court vide order dated 23.2. 005 therefore, while exercising the powers under Articles 187 and 188 of the Constitution, the order dated 23.2.2005 passed in Criminal Petition No,359-L/2003 filed by Khalid alias Nadeem was also recalled and reviewed with the direction to remand the case to the learned High Court to be decided afresh and Criminal Petition No,359- L/2003 was ordered to be converted into Appeal and allowed and the impugned judgment was set aside and Criminal Appeal No,312-J/2002 shall be deemed to be pending before the High Court to be decided afresh. 5. The prosecution story as contained in the written application (Exh.PA) lodged by the complainant-Mirza Munir Baig (PW-2) is that on 02.02.2001 at 8.00 a.m. He along with his brother Mirza Bashir Baig, after dropping the children in Cantt City School by motor car, reached Gumman Shaheed Chowk, all the four persons while armed with firearms were found present there. Out of four the said accused, Shahbaz Butt and Munir alias Muniri were identified by the complainant. The other two accused were not known to them. They stopped the car and dragged the complainant and his brother from the car. Later on, the accused got seated Mirza Bashir Baig, brother of the complainant, on the rear seat. Munir sat down on one side of. The abductee and Shahbaz sat down on the other side of the abductee. Out of those unknown accused, one started driving the car. The other unknown persons sat down on the front seat. All the accused persons also fired with their respective weapons. Many persons gathered in the Chowk but due to fear they did not come forward. Mirza Bashir Baig was taken away by the . Accused towards Talwarah Mughlan. The road was blocked due to cart loaded with chaff. Thereafter the accused persons fled away while firing. The motive behind the occurrence was the murder of one Maqbool Khan and the accused were annoyed because the complainant party was pursuing the case against the accused. Thereafter, the accused demanded ransom for release of the abductee. The relatives of the abductee paid Rs,13,00,000/- to the accused persons and they released him along with his motorcar. 6. On the basis of the complaint submitted by the complainant, formal FIR (Exh.PA/1) was chalked out by Muhammad Munir, ASI (PW-8). Muhammad Iqbal, SI (PW-9) who was the Investigating Officer, stated that on 02.02.2001 he was present in the area of Talawarah Mughlan, Sialkot when
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Mirza Munir Baig (PW-2) produced application (Ex.PA) before him who sent the same to the Police Station for formal registration of case. He then proceeded to the place of occurrence, inspected the spot and recorded statements of the prosecution witnesses. He prepared the site plan without scale of the place of occurrence Ex.PAA. He also recorded the supplementary statement of the complainant as well as the prosecution witnesses, got held the identification parade which was held within the premises of District Jail, Sialkot and the accused were correctly identified. The Investigating Officer also' got recovered .30-bore pistols from the accused Shahbaz Butt and Muhammad Akram and secured the same vide recovery memos Ex.PBB and Ex.PCC respectively. The Investigating Officer also got recorded the statement under section 164, Cr.P.C. Of abductee Mirza Bashir Baig from the Magistrate. Asghar accused already under arrest in another case, disclosed his involvement in the instant case, and physical remand of Asghar along with Khalid, Ishfaq and Rafique was obtained. The investigation was also conducted by Muhammad Irfan- ulHaq, Inspector (PW-10) who supported the prosecution story as mentioned above. He arrested Ishfaqu accused on 25.2.2001 along with 30 bore pistol, secured the same vide memo Ex.PG, Ejaz Butt accused was also arrested on the same day and on his personal search, 30-bore pistol was taken into possession vide memo Ex.PN, Munir accused at the time of his arrest was found to be in possession of 30-bore pistol which was taken into possession vide memo Ex.PQ. On 26.2.2001 Khalid accused was arrested and from his possession, 30-bore pistol along with Kalashnikov, a hand grenade and 70 live cartridges were recovered which were secured vide memo Ex.PR, Rafique accused on 2.3.2001 led to the recovery of hand grenade and Klashnikov which were taken into possession vide memo Ex.PS and Eh.PT. On the same day, Munir accused got recovered Rs,2,90,600/- and Rs,35,000/- from the house of Shahid alias Deeka which were secured vide memo Ex.PC. On the same day, Ijaz accused got recovered Rs,4,00,000/- which were taken into possession vide memo Ex.PD, this accused also got recovered hand grenade and Klashnikov. On 1.4.2001 Khalid accused got recovered Rs,2,50,000/- which was secured vide memo Ex.PE. On the same day Asghar accused got recovered Rs,50,000/- which was taken into possession vide memo Ex.PF. On the same day Ishfaque accused got recovered Rs,75,000/-, hand grenade and a Kalashnikov which were taken into possession vide memo Ex.PX and Ex.PW, Rafique accused also got recovered Rs,1,75,000/- which was taken into possession vide memo Ex.PH. This accused also got recovered a .30 bore pistol. On 9.5.2001 Saleem accused got recovered Rs,30,000/-, secured vide memo Ex.PDD. On 9.7.2001 Shahbaz accused led to the recovery of Rs,10,000/-, and again Rs,10,000/- which were secured vide memo Ex.PI and Ex.PN. On 18.7.2001 accused Shahbaz led to the recovery of Rs,87,500/- and 30-bore pistol. Muhammad Akram accused got recovered Rs,456,000/-, Asif accused also got recovered Rs,45,000/- apart from pistol. 7. Having found the appellants guilty, the Investigating Officer prepared report under Section 173, Cr.P.C. And sent the same to the court of competent jurisdiction. On 27.5.2002, the learned trial court formally charge sheeted the appellants along with their co-appellants (since dead) to which they pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as ten (10) prosecution witnesses. 8. Ocular account of first part of occurrence in this case has come out from the statement of Mirza Bashir Baig, (PW-1) who was the abductee of this case whereas Mirza. Munir Baig, the complainant of this case, was produced as (PW-2) and supported the prosecution story. Muhammad Iqbal, S.I. (PW-9) and Muhammad Irfan ul Haq, Inspector (PW-10) conducted the investigation. The statements of remaining prosecution witnesses are formal in nature. 9. The learned Public Prosecutor vide his separate statement dated 3.7.2002 gave up all the remaining PWs being unnecessary and closed the prosecution evidence. The appellants were examined under Section 342, Cr.P.C., wherein they did not opt to appear as their own witnesses as provided under Section 340(2), Cr.P.C. To disprove the allegations levelled against them except
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accused Imdad alias Dadu (since acquitted), who produced certified copies of his bail application Ex.DA, bail order Ex.DA/1, affidavit of Mirza Munir Baig, complainant Ex.DB and list of election result, vide his statement dated 29.7.2002. 10. In response to the question that why this case against him and why the PWs deposed against him, Khalid alias Nadeem, appellant made following deposition:-- ' "I have been falsely involved in this case on the behest of the Investigating Officer with the connivance of the complainant of this case. In fact, the Investigating Officer has introduced my name in this case as accused to show efficiency to the high ups of the police department. 11. Likewise, in response to the question that why this case against him and why the PWs deposed against him, Asghar alias Koudu, appellant made following deposition:-- ' "I have been falsely implicated in this case due to mala fide and in the sense of doctrine of transferred animus, having acquaintance with some other co-accused. I was not named in the FIR. The police in order to show its efficiency to its high ups and to save their service have falsely involved me in this case." 12. Learned trial court after evaluating the evidence available on record in the light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction and sentence of the appellants in the afore noted terms. 13. On the other hand, Learned Deputy Prosecutor General as well as the learned counsel for the complainant have supported the impugned judgment by contending that the prosecution has successfully proved its case through ocular testimony and recovery of ransom amount as well as the crime weapon of offence. 14. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the parties. 15. Prosecution story as contained in the written application (Exh.PA) lodged by the complainant- Mirza Munir Baig (PW-2) is that on 02.02.2001 at 8:00 a.m. The complainant-Mirza Munir Baig (PW2) along with his brother Mirza Bashir Baig (PW-1), after dropping the children in Cantt City School by motor car No,STA-3434 they reached Gunman Shaheed Chowk while four persons while armed with firearms were present there. The complainant-Mirza Munir Baig (PW-2) identified out of four the said accused, Shahbaz Butt (since died) and Munir alias Muniri (since died) whereas two accused were unknown. The complainant-Mirza Munir Baig (PW-2) deposed during his court statement that, "the name of Ejaz Butt was not in my memory at that time; therefore, I had told his name just after producing the application before the police." However the abductee, Mirza Bashir Baig (PW-1) deposed during examination-in-chief that, "I identified Shahbaz Butt, Ejaz Butt and Munir alias Muniri." It is the emphatic version of the abductee, Mirza Bashir Baig (PW-1) and the complainant-Mirza Munir Baig (PW-2) that the abductors numbering four who abducted him/Mirza Bashir Baig (PW-1) whereas out of four three were identified as Shahbaz Butt (since died), Ejaz Butt (since died) and Munir alias Muniri (since died).. Forth accused was later on identified as Ashfaque alias Said (since died). 16. The second part of the occurrence came on the surface when Muhammad Iqbal, SI (PW-9), the investigating officer, got recorded statement of the abductee, Mirza Bashir Baig (PW-1) under section 164, Criminal Procedure Code on 08.02.2001. The description of the alleged abductors does not figure in the statement under section 164, Criminal Procedure Code of PW-1. The abductee, Mirza Bashir Baig (PW-1) deposed during examinationin-chief that, "the accused then reversed the motor car and took me towards Badiyana . Chowk wherefrom a Suzuki pick-up also joined us. Four/five persons were boarding in the said vehicle. I identified them during the identification parade in the District Jail Sialkot in the presence of a Magistrate and their names are Khalid Nadeem alias Taina, Ashfaque alias Saki, Rafique alias Kouna and Asghar alias Kala." Evidence of identification parade was of no value due to the inherent defect that the witness had not
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described the role of accused in the occurrence while identifying them. On perusal of identification parade proceedings (Exh.PZ.2) it reveals that the abductee, Mirza Bashir Baig (PW-1) while identifying the accused stated that the accused persons abducted him when he was going to Khawaja Safdar Road near Talawarah Minch. This is not what has been done in the present case by the appellant and, therefore, the corroboration of the substantive evidence of PW-1 on the identification of the suspect by the test identification parade is not trustworthy. 17. It is relevant to mention here that the abductee, Mirza Bashir Baig (PW-1) and the complainant- Mirza Munir Baig (PW-2) deposed that they identified three out of four as Shahbaz Butt (since died), Ejaz Butt (since died) and Munir alias Muniri (since died). The fourth accused was later on identified as Ashfaque alias Saki (since died). In the first part of the occurrence, four accused took part as mentioned above. The appellants Khalid Nadeem alias Taina and Asghar alias Kala were not figured anywhere. We also find serious discrepancies in the manner in which the PW-1 identified the accused persons-the appellants in the identification parade. From the application for identification parade (Exh.PZ) it reveals that same was dated 28.02.2001 wherein it is mentioned that the accused were sent to judicial lock-up for identification parade in the instant case and request was made for fixation of date for identification parade. On 01.03.2001 the Magistrate directed the Superintendent, District Jail, Sialkot to make arrangements for conducting identification parade on 03-03-2001 at 12.00 noon. Whereas Khalil Nadeem alias Taina was arrested on 26.02.2001 by Muhammad Irfan-ul-Haq (PW-10), the investigating officer. Muhammad. Iqbal,(PW-9) deposed during examination-in-chief that Asghar accused was arrested in case FIR No,510 in which he had disclosed that he, was also involved in this case. I therefore applied for his identification parade-,whereas contrary to above deposition he (PW-9) deposed during cross-examination that, "I did not arrest the accused Asghar anyhow he was in jail and after his formal arrest I applied for his identification parade." 18. The prosecution case to the extent of the appellants-Khalid alias Nadeem alias Taina and Asghar alias Kala entirely depends upon identification parade and recoveries affected from the accused-the appellants-Khalid Nadeem alias Taina and Asghar alias Kala. The abductee, Mirza Bashir Baig (PW-1) nowhere in his testimony had stated a word against the accused/appellants except that, at the cost of repetition,"the accused then reversed the motor car and took me towards Badiyana Chowk wherefrom a Suzuki pick-up also joined us. Four/five persons were boarding in the said vehicle. I identified them during the identification parade in the District Jail Sialkot in the presence of a Magistrate and their names are Khalid Nadeem alias Taina, Ashfaque alias Saki, Rafique alias Kouna and Asghar alias Kala." The alleged identification of the appellants by PW-1 for the first time during identification parade is too vague and too weak to be relied upon when PW-1 had not mentioned the description, features and complexion of the accused present in Suzuki pickup. Having remained closeted with the abductors including the appellants for approximately one day, if it is so, the abductee, Mirza Bashir Baig (PW-1) had ample opportunity to identify the features and facial of the unknown accused. The abductee, Mirza Bashir Baig (PW-1) had made statement after five (5) days of his release by the accused; he could state description, features and complexion of the accused boarding in Suzuki pickup. The abductee, Mirza Bashir Baig (PW-1) also deposed during examination-in-chief that, "I was dragged to the rear seat. Shahbaz sat down on my left side. Munir accused sat on my right side and Ejaz on front seat and Ashfaque alias Saki started driving." In such situation it is not possible to have a fleeting glimpse of the accused boarded in the other vehicle Suzuki Pickup. Delay in holding a test indentification parade has to be viewed seriously. In such like cases proceedings of indentification parade have to be seen with care and caution. It is an admitted fact that the identification parade was conducted after six (6) days of the arrest of Khalid Nadeem alias Taina on 26.02.2001 and after four (4) days from the preparation of
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application of identification p arade on 28.02.2001. There is dispute on the point that descriptions of the dummies were not mentioned in the report (Ex.PZ/1). The delay in holding identification parade has not been explained by the prosecution. The delay in conducting identification parade lost its evidentiary value and same cannot be relied upon. It is held by the Hon'ble Supreme Court Of Pakistan in the case of Shafqat Mehmood and others v. The State" (2011 SCM R 537) that:-- ' "Delay of seven days in holding the identification parade after the arrest of accused had made the same doubtful." 19. It is also admitted fact that the four (4) accused i.e, Khalid Nadeem alias Taina, Ashfaque alias Saki, Rafique alias Kouna and Asghar alias Kala were put to identification parade held on 03.03.2001 jointly. It is held by the Hon'ble Supreme Court of Pakistan in the case of "Shafqat Mehmood and others v. The State" (2011 SCM R 537) that:-- ' "It is also settled principle of law that identification parade of each accused should be held separately otherwise confusion would be created." 20. In order to prove its case the prosecution had to prove that the accused Khalid alias Nadeem and Asghar alias Koudo were involved in abduction for ransom. The offence of abduction is a continuing offence and the abductee (PW-1) failed to state a single word regarding the role played by the accused-Khalid alias Nadeem and Asghar alias Koudo in the entire occurrence. The said witness is the star witness of the prosecution as he was the person who had been abducted. The said witness has categorically deposed during examination-in-chief that, "The accused then demanded ransom from my brothers and my sons. The accused threatened one in the words that if ransom is not received they would murder me. On the next day the accused on the receipt of Rs,13,00,000/-, from my relatives released me." (Underline for emphasize). The abductee, Mirza Bashir Baig (PW1) has not named "the accused" that threatened him, received amount of ransom and released him. Section 365-A which deals with 'Kidnapping for ransom etc.' reads as follows:-- ' "Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted any property, whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted, shall be punished with death or imprisonment for life and shall also be liable to forfeiture of property." 21. The Section refers to both "Kidnapping" and "Abduction" Section 359, Pakistan Penal Code 1860, defines Kidnapping. As per the said provision there are two types of kidnapping i.e, (1) kidnapping from Pakistan; and (2) kidnapping from lawful guardianship. Abduction is defined in Section 362, Pakistan Penal Code 1860. The provision envisages two types of abduction i.e, (1) by force or by compulsion; and/or (2) inducement by deceitful means. The object of such force or compulsion must be for taking out of the victim from any place. The case at hand falls in the first category defined in Section 362, Pakistan Penal Code. To attract the provisions of section 365-A, Pakistan Penal Code it is required to be proved that (1) the accused kidnapped or abducted the person; and (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom. There is no evidence to show the involvement of the appellants in any activity for which provisions of the Act, 1860 would be applicable. There is no evidence that they committed the offence of abduction or they were members of the group of accused who committed the offence. The abduction of the abductee, Mirza Bashir Baig (PW-1) by present appellants-Khalid alias Nadeem and Asghar alias Koudo have not been established by the prosecution. 22. There is another aspect of the case, the house where the abductee (PW-1) was kept by the accused, has not been shown to the Police and there is nothing to suggest that the alleged amount of ransom was demanded or paid to the appellants. Likewise, Umar Baig {PW-4) does not
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state anything about the specific place at Gujranwala where he, Haider Pahlwan, Shada alias Deeka (since acquitted) and Ch. Imdad alias Dadu (since acquitted) paid ransom amount of Rs,13,00,000/- to Munir, Ejaz, Jhenna, Asghar alias Kala, Rafique Kona, and some other people. Umar Baig (PW-4) made statement before court on 13.06.2002 and admitted during cross-examination that, "my statement was not recorded by the police. I never appeared before any police officer in connection with investigation of this case." Contrary to the same Muhammad Iqbal, S.I. (PW-9) deposed during cross-examination that, "On 03-03-2001 recorded the statement of Usman Baig and Umar Baig at police station." The evidence led to the story alleged for the afore- referred reasons is not free from doubt. 23. On perusal of recovery memo (Ex.PR), it…
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